Keyandia C. v. Dcs, C.C. ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
KEYANDIA C., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, C.C., Appellees.
No. 1 CA-JV 21-0220
FILED 2-10-2022
Appeal from the Superior Court in Maricopa County
No. JD34449
The Honorable Christopher Whitten, Judge
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By James W. Rappaport
Counsel for Appellee Department of Child Safety
KEYANDIA C. v. DCS, C.C.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge David B. Gass and Judge James B. Morse Jr. joined.
W I L L I A M S, Judge:
¶1 Keyandia C. (“Mother”) appeals the superior court’s order
terminating her parental rights to her child. For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This case is not the first time the Department of Child Safety
(“DCS”) intervened in Mother’s care of her child, C.C. In 2017, the superior
court adjudicated C.C. dependent based upon Mother’s domestic violence,
substance abuse, and untreated mental-health issues. After Mother’s
successful participation in services, the superior court dismissed the
dependency and returned C.C. to her.
¶3 Three years later, in April 2020, Mother left C.C. in maternal
grandmother’s care and left the state. When grandmother was unable to
continue caring for C.C., she notified Mother who refused to take the child.
DCS took custody of C.C. and filed a dependency petition. Mother told DCS
she was in California but planned to leave soon and did not know where
she would live. She did, however, provide DCS with a P.O. Box address in
Tempe and requested visitation. DCS referred her for supervised visits, but
the referral eventually closed because of Mother’s lack of contact. A few
months later, the superior court adjudicated C.C. dependent.
¶4 In the months following C.C.’s removal, Mother moved
frequently and maintained only sporadic contact with DCS. Without a
physical address, DCS was unable to refer her for services. DCS referred
Mother for drug testing, but she did not comply. DCS also tried to engage
Mother by setting up in-person meetings, but after agreeing to them,
Mother never appeared. DCS again referred Mother for supervised visits,
but Mother did not participate.
¶5 Mother did not visit C.C. until December 2020. The two visits
that month did not go well, and Mother still had not participated in
substance-abuse testing or provided DCS with a physical address. Over the
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KEYANDIA C. v. DCS, C.C.
Decision of the Court
next few months, Mother was incarcerated in Arizona on charges of
disorderly conduct, assault, and trespassing. Meanwhile, the superior court
changed the case plan to severance and adoption, and DCS moved to
terminate Mother’s parental rights based upon abandonment and nine
months in an out-of-home placement. See A.R.S. § 8-533(B)(1), (B)(8)(a).
¶6 Mother was released from jail in March 2021, and then met
with the case manager. As a result of that meeting, DCS referred her for
substance-abuse testing and treatment, a psychological consultation, and
visitation. The consulting psychologist recommended Mother participate in
masters-level individual counseling. The DCS case manager testified
Mother knew about the recommendation but indicated she did not need
counseling.
¶7 By the termination hearing, Mother had regularly attended
visitation after her release from jail but had completed only two drug tests
and had not participated in any other services. The superior court
terminated Mother’s parental rights based upon abandonment and nine
months in an out-of-home placement. Mother timely appealed. This court
has jurisdiction under Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 8-235(A), 12-120.21(A)(1), and -2101(A)(1).
DISCUSSION
¶8 On appeal, Mother argues no reasonable evidence supports
the superior court’s finding that DCS made diligent efforts to provide her
with appropriate reunification services under the nine-month out-of-home
placement ground. See A.R.S. § 8-533(B)(8)(a). Because we affirm the
termination order under the nine-month out-of-home placement ground,
we need not address Mother’s arguments regarding abandonment. See Jesus
M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 3 (App. 2002).
¶9 Parents’ right to custody and control of their own children,
though fundamental, is not absolute. Michael J. v. Ariz. Dep’t of Econ. Sec.,
196 Ariz. 246, 248, ¶¶ 11–12 (2000). Termination of a parental relationship
may be warranted if the state proves one statutory ground under A.R.S.
§ 8-533 by clear and convincing evidence. Id. at 248–49, ¶ 12. Clear and
convincing means the grounds for termination are highly probable or
reasonably certain. Kent K. v. Bobby M., 210 Ariz. 279, 284–85, ¶ 25 (2005).
The court must also find termination of the relationship to be in the child’s
best interest by a preponderance of the evidence. Id. at 285, ¶ 29.
¶10 This court “will accept the juvenile court’s findings of fact
unless no reasonable evidence supports those findings, and [this court] will
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KEYANDIA C. v. DCS, C.C.
Decision of the Court
affirm a [termination] order unless it is clearly erroneous.” Jesus M., 203
Ariz. at 280, ¶ 4. This court does not reweigh the evidence, but “look[s] only
to determine if there is evidence to sustain the [superior] court’s ruling.”
Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004).
¶11 Before terminating a parent’s rights under the nine-month
out-of-home placement grounds, the superior court must find DCS made
diligent efforts to provide the parent with appropriate reunification
services. A.R.S. § 8-533(B)(8). DCS satisfies its diligent-efforts obligation if
it provides the parent with “the time and opportunity to participate in
programs designed to help [the parent] become an effective parent.” See
Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353 (App. 1994). That
means DCS must “identify the conditions causing the child’s out-of-home
placement, provide services that have a reasonable prospect of success to
remedy the circumstances as they arise throughout the time-in-care period,
maintain consistent contact with the parent, and make reasonable efforts to
assist the parent in areas where compliance proves difficult.” Donald W. v.
Dep’t of Child Safety, 247 Ariz. 9, 23, ¶ 50 (App. 2019).
¶12 Although DCS must continue to make diligent efforts “during
the entire time the [case plan is] reunification,” see Jordan C. v. Ariz. Dep’t of
Econ. Sec., 223 Ariz. 86, 96, ¶ 30 (App. 2009), it is not required to provide
parents with unlimited time to “assume their responsibilities and take
positive steps toward recovery,” Maricopa Cnty. Juv. Action No. JS-501568,
177 Ariz. 571, 577 (App. 1994). Nor is it required to “provide every
conceivable service” or to ensure that the parent participates in the services
offered. Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. at 353. And it
need not undertake futile reunification efforts. Mary Ellen C. v. Ariz. Dep’t
of Econ. Sec., 193 Ariz. 185, 192, ¶ 34 (App. 1999).
¶13 As an initial matter, DCS argues Mother waived her claim by
not raising it before the termination hearing. Because Mother challenged
DCS’s efforts to provide services during the termination hearing, we
decline to apply waiver here. See Marianne N. v. Dep’t of Child Safety, 243
Ariz. 53, 56 (2017) (waiver is discretionary); cf. Shawanee S. v. Ariz. Dep’t of
Econ. Sec., 234 Ariz. 174, 179, ¶¶ 17–18 (App. 2014) (applying waiver when
parent failed to raise service issues during review hearings or at the time of
the termination trial).
¶14 Turning to the merits, Mother first contends DCS failed to
take affirmative steps to locate her or assist her with housing. Mother,
however, was neither missing nor unaware of the dependency. The DCS
case manager contacted her immediately, and she returned his call just days
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KEYANDIA C. v. DCS, C.C.
Decision of the Court
after DCS took custody of C.C. During that call, the case manager provided
Mother with his contact information.
¶15 Once Mother had that information and knew C.C. was in
foster care, she moved frequently, failed to keep in regular contact with the
case manager, and never provided DCS with a physical address so it could
refer her for services. Additionally, despite her frequent moves, as noted
supra ¶ 4, the case manager set up in-person meetings with Mother, but
Mother did not show up.
¶16 Mother knew she needed to establish stable housing. Yet, the
record shows she took little initiative to remedy her instability and never
indicated to DCS that she needed housing assistance, prompting the case
manager to “assume,” based upon his conversations with her, that she
moved frequently by choice. Indeed, Mother testified that for the first half
of the dependency, she “was out of town,” because “random people and
random guys would just talk to me and try to take me out of town,” and
she thought they would help her find a job.
¶17 Mother next argues DCS waited almost a year to refer her for
substance-abuse testing and treatment. The record shows, however, that
Mother’s repeated moves and failure to remain in consistent contact with
DCS hindered the case manager’s ability to refer her for substance-abuse
services. When Mother was referred for substance-abuse services, she
resisted the initial treatment assessment, indicating she did not have
substance-abuse issues. Mother did not begin to engage in the case until
December 2020, when she had two visits with C.C.
¶18 Mother asserts that DCS should have referred her for
substance-abuse services at that time. But, according to the case manager,
Mother did not tell him that she was living in Arizona, nor did she provide
him with her address so he could refer her for those services. Regardless,
Mother was incarcerated over the next few months, hindering her ability to
participate in DCS’s referrals during that time. When Mother finally
provided her location to DCS in March 2021, the case manager immediately
referred her for substance-abuse services. She, however, only drug tested
twice and never completed a substance-abuse assessment.
¶19 Mother next contends the case manager ignored her requests
for a hair follicle drug test. The case manager testified that Mother indicated
she did not want to complete a hair test, so to accommodate her, he set up
urinalysis testing. Although Mother disputes this testimony, the resolution
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KEYANDIA C. v. DCS, C.C.
Decision of the Court
of conflicting evidence “is uniquely the province of the [superior] court” to
weigh and decide as the trier of fact. Jesus M., 203 Ariz. at 282, ¶ 12.
¶20 Finally, Mother argues DCS failed to provide her with
mental-health services, such as a psychological evaluation and individual
counseling, and should have completed a psychological consultation
sooner. However, DCS agreed to refer Mother for mental-health services
after she demonstrated thirty days’ sobriety. The case manager testified that
this requirement was needed to ensure an accurate psychological
evaluation. Regardless, Mother did not provide her location to him so he
could refer her for services until March 2021. Then, she participated in only
a few urinalysis tests, and when DCS tried to implement individual
counseling, she indicated she did not need it. Mother’s refusal to engage in
the case for the first ten months ultimately caused the delays she points to
on appeal.
¶21 On this record, reasonable evidence supports the superior
court’s finding that DCS made diligent efforts to provide Mother with
appropriate reunification services and that Mother failed to remedy the
circumstances the caused C.C. to be in an out-of-home placement.
CONCLUSION
¶22 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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